Ramya Antony v. State of Kerala & Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN WEDNESDAY, THE 14TH DAY OF FEBRUARY 2018 / 25TH MAGHA, 1939 WP(C).No. 1067 of 2017** ## **PETITIONER:** **RAMYA ANTONY, D/O.SRI.K.S.ANTONY, AGED 30 YEARS, HIGHER SECONDARY SCHOOL TEACHER (HINDI), ST.GEORGE HIGHER SECONDARY SCHOOL, VAZHATHOPPE, IDUKKI, RESIDING AT MANAPPURATH HOUSE, MURIKKASSERRI P.O, IDUKKI-685 604.** **BY SRI.O.V.RADHAKRISHNAN,SENIOR ADVOCATE ADVS.SMT.K.RADHAMANI AMMA SRI.P.ABDUL NISHAD** **RESPONDENT(S):** **1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. DIRECTOR OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM - 695 001.** **3. REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, KOTTAYAM - 686 012.** ## **4. MANAGER,** **CORPORATE EDUCATIONAL AGENCY, DIOCESE OF IDUKKI, BISHOP'S HOUSE, KARIMPAN, IDUKKI DISTRICT - 695 602.** **5. JOLLY JOSEPH, W/O.SRI.JOSE JOSEPH, KUNNATHU HOUSE, AYAMKARA, PAINGATTOOR P.O, ERNAKULAM DISTRICT -686 671.** **R1 TO R3 BY SR GOVERNMENT PLEADER SRI.P.M.MANOJ R4 BY ADV. SRI.V.M.KURIAN R5 BY ADVS. SRI.P.SANJAY SMT.A.PARVATHI MENON SRI.BIJU MEENATTOOR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-01-2018,ALONG WITH WP(C).NO.18038 OF 2017, THE COURT ON 14-02-2018 DELIVERED THE FOLLOWING:** **sts** **WP(C).No. 1067 of 2017 (G)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT-P1: PHOTOCOPY OF THE NOTIFICATION APPEARED IN HIGHRANGE DEEPIKA DAILY DATED 15.06.2012. EXHIBIT-P2: PHOTOCOPY OF THE MINUTES OF THE SELECTION COMMITTEE HELD ON 06.07.2012. EXHIBIT-P3: PHOTOCOPY OF THE APPOINTMENT ORDER NO.HSE-20/12/H-06 DATED 09.07.2012 OF THE 4TH RESPONDENT.** **EXHIBIT-P4: PHOTOCOPY OF THE ORDER NO.A5/12578/RDDE/2012 DATED 02.01.2013 OF THE 3RD RESPONDENT. EXHIBIT-P5: PHOTOCOPY OF THE GO(MS) NO.167/11/G.EDN DATED 03.08.2011 OF THE 1ST RESPONDENT. EXHIBIT-P6: PHOTOCOPY OF THE GO(MS) NO.211/2013/G.EDN DATED 15.07.2013 ALONGWITH THE RELEVANT PAGES OF THE ANNEXURE OF THE 1ST RESPONDENT.** **EXHIBIT-P7: PHOTOCOPY OF THE APPOINTMENT ORDER NO.HSE-21/12/H-05 OF THE 5TH RESPONDENT. EXHIBIT-P8: PHOTOCOPY OF THE ORDER NO.B1/10299/2014/RDD/HSE/KTM DATED 15.05.2015 OF THE 3RD RESPONDENT. EXHIBIT-P9: PHOTOCOPY OF THE ORDER NO.HSE-07/15/H-05 DATED 04.06.2015 OF THE 4TH RESPONDENT. EXHIBIT-P10: PHOTOCOPY OF THE APPOINTMENT ORDER OF THE PETITIONER NO.HSE-07/15/A-05 DATED 04.06.2015 OF THE 4TH RESPONDENT. EXHIBIT-P11: PHOTOCOPY OF THE ORDER NO.B1/4887/15/RDD/HSE/KTM DATED 06.08.2015 OF THE 3RD RESPONDENT. EXHIBIT-P12: PHOTOCOPY OF THE APPEAL PETITION DATED 13.08.2015 OF THE 4TH RESPONDENT TO THE 2ND RESPONDENT. EXHIBIT-P13: PHOTOCOPY OF THE JUDGMENT DATED 17.11.2016 IN WP(C) NO.30448 OF 2015 OF THIS HON'BLE COURT. EXHIBIT-P14: PHOTOCOPY OF THE ARGUMENT NOTE DATED 14.12.2016 OF THE PETITIONER.** **2/-** **WP(C).No. 1067 of 2017 (G)** **-2-** **EXHIBIT-P15: PHOTOCOPY OF THE ARGUMENT NOTE DATED 09.12.2016 OF THE 4TH RESPONDENT.** **EXHIBIT-P16: PHOTOCOPY OF THE ORDER NO.ACDB1/51049/2016/HSE DATED 30.12.2016 OF THE 2ND RESPONDENT.** **RESPONDENT'S EXHIBITS:** **NIL** **/TRUE COPY/** **P.A.TO JUDGE** **sts** ## **ANU SIVARAMAN, J.** ## **= = = = = = = = = = = = = = =** ## **W.P.(C).Nos.1067 & 18038 of 2017** **= = = = = = = = = = = = = = = Dated this the 14[th] day of February, 2018** ## **JUDGMENT** - 1.The issue raised herein is with regard to appointment and approval as HSST (Hindi) under the Corporate Educational agency. The parties and documents are being referred to as in W.P.(C).No.1067/2017, unless specifically mentioned. - 2.The contention of the petitioner in W.P.(C).No.1067 of 2017 (5[th] respondent in W.P.(C).No.18038 of 2017) is that the petitioner was appointed as HSST (Hindi) under the 4[th] respondent Corporate Educational Agency against an existing leave vacancy for the period from 9.7.2010 to 23.7.2015. A selection was made by the Statutory Selection Committee and the petitioner was placed at Rank No.1 in the select list. The petitioner's appointment against the leave vacancy was approved by the 3[rd] respondent as per Ext.P4. The 5[th] respondent, who was the 2[nd] rank holder was appointed against an anticipated vacancy. The appointment W.P.(C).Nos.1067 & 18038/17 2 of the 5[th] respondent was approved only with effect from 14.8.2013 on sanction being accorded for the additional post on 15.7.2013. The leave vacancy against which the petitioner was appointed was terminated with effect from 4.6.2015 and consequently the 5[th] respondent, who was the junior most hand in the category of HSST (Hindi) was retrenched by the Manager and the petitioner was retained at St.George HSS, Vazhathoppe. However, the proposal for approval of appointment of the petitioner was rejected by the 3[rd] respondent as per Ext.P11 and the same has been upheld by the 2[nd] respondent in appeal as per Exhibit P16. Exhibits P11 and P16 orders are under challenge. 3. The learned Senior Counsel appearing for the petitioner relies on the decision of a Full Bench of this Court in **Vijayan v. Deputy Director** [1998 (2) KLT 413 FB] to contend that where there is a reduction of post, retrenchment should be on the principle of 'last come, first go' and the said principle is equally applicable in the case of posts in Higher Secondary W.P.(C).Nos.1067 & 18038/17 3 Schools. Relying on the decision of the Apex Court in **Bharat Singh v. State of Haryana** [1988 4 SCC 534], it is contended that when a point of law is required to be substantiated by facts, the party raising the point must plead and prove such facts in evidence. 4.The learned counsel for the 5[th] respondent, on the other hand, contends that the petitioner who was rank No.1 in the selection was appointed against a leave vacancy while the contesting respondent, who was Rank No.2 was appointed against an additional divisional vacancy, anticipating orders sanctioning the post. The petitioner had not objected to such appointments. On sanctioning of the post, the appointment of the contesting respondent was approved w.e.f. 14.8.2013 and this approval was never called to question. It is stated that a vacancy of HSST- Hindi arose in one of the schools in the Corporate educational agency on 31.1.2017 and the contesting respondent is eligible for appointment against the said post. The claim has also not been considered due to the W.P.(C).Nos.1067 & 18038/17 4 pendency of W.P.(C).No.1067/2017 and the interim stay ordered therein. 5.It is the specific case of the 5[th] respondent that the post of HSST Junior to which the 5[th] respondent was appointed was sanctioned in the school on 15.7.2013 by Exhibit P6 Government Order. No objection was raised by the petitioner, who was continuing against a leave vacancy even after the issuance of Exhibit P6 Government Order or even when the 5[th] respondent's appointment was approved by order dated 15.05.2015 w.e.f. 14.8.2013. It is stated that the claim was raised by the petitioner for the first time only after the petitioner was thrown out of service on account of the teacher who availed leave rejoining duty. It is contended that once the 5[th] respondent's appointment was approved against the substantive vacancy which arose on 15.7.2013, the petitioner, who did not object to such approval, cannot raise a claim at a later point in time. W.P.(C).Nos.1067 & 18038/17 5 - 6.A counter affidavit has been filed by the 3[rd] respondent in W.P.(C).No.1067/2017 stating that the petitioner had been appointed in the leave vacancy of Smt.Dinimol N.D in the St.Jerom's HSS, Vellayamkudy for the period from 9.7.2012 to 23.7.2015 or till Dinimol rejoins duty, whichever is earlier. It is stated that the 5[th] respondent was appointed on 09.07.2012 in the anticipated vacancy in St.George's HSS, Vazhathope and the said appointment was approved w.e.f 14.8.2013. Smt.Dinimol N.D rejoined duty on 4.6.2015 and the petitioner was thrown out of service. It is only thereafter that she had raised objections and had claimed continuance in service. - 7.I have considered the contentions advanced. It is an admitted fact that the petitioner in W.P.(C).No.1067/2017 was ranked No.1 in the select list prepared by the selection committee. She was appointed against an existing leave vacancy on 9.7.2012. The approval was also granted. The 2[nd] rank holder, the 5[th] respondent, was appointed against an W.P.(C).Nos.1067 & 18038/17 6 additional vacancy anticipating orders of sanction of post. Sanction was granted for creation of additional post of HSST Junior on 15.7.2013. The petitioner who was working the St.Jerom's HSS, Vellayamkudy did not raise any claim for shifting her lien against the post of HSST Junior (Hindi) sanctioned in any of the schools under the Corporate Educational Agency. She continued against the leave vacancy. Since no claim had been raised by the petitioner, the 5[th] respondent's appointment against the anticipated vacancy was approved by proceedings dated 15-5-2015 w.e.f. 14.8.2013. Even after the orders of approval, no claim was raised by the petitioner. It was only when Dinimol rejoined duty and the petitioner was rendered without a post to accommodate her that she had raised a claim of the basis of her inclusion in the select list at Sl.No.1. According to me, the objection raised by the petitioner against an appointment made w.e.f. 14-8-2013 was highly belated. Therefore W.P. (C).No.1067 of 2017 fails and the same is dismissed. However, it is urged before me that Smt Dinimol, who was W.P.(C).Nos.1067 & 18038/17 7 accommodated as HSST-Junior (Hindi), has resigned on 30.1.2017 and the 5[th] respondent had raised a claim for appointment as HSST-Junior (Hindi) in the vacancy created by the resignation of Dinimol. If that be so, the Manager has to appoint the senior most HSST (Junior) in the concerned subject as HSST. A vacancy would therefore arise in the post of HSST (Junior) in Hindi. The petitioner was admittedly a teacher who was ranked No.1 in the select list prepared in 2012 and had also worked against the post of HSST (Hindi) from 09.07.2012 to 4.6.2015, when Dinimol rejoined service. In the above view of the matter, I am of the opinion that the petitioner should be accommodated by the 4[th] respondent in the vacancy of HSST (Junior) which would arise consequent to the appointment of the senior most claimant in the post of HSST-Junior (Hindi) to the vacancy created by Dinimol's resignation. - 8.In the above view of the matter, there will be a direction to the 4[th] respondent to make appointment to the post of HSST W.P.(C).Nos.1067 & 18038/17 8 (Hindi) in accordance with law and accommodate the petitioner in W.P.(C).No.1067 of 2017 in the resultant vacancy of HSST (Junior) in Hindi. The appointment, if any, made shall be approved by the Educational Authorities and salary shall be paid accordingly. These writ petitions are ordered accordingly. Sd/- **Anu Sivaraman, Judge** sj